Scott E. Mollen

Landlord-Tenant—Landlord Serving and Naming Minor on Petition Did Not Constitute Harassment Since Legislature Amended the RPAPL To Authorize Warrants Commanding Marshals To Remove All Persons "Named in the Proceeding"— Undesirable Result Could Be Addressed By the Legislature

A petitioner tenant asserted that service of a rent demand constituted harassment and that she did not owe any rent.

She introduced into evidence a demand for payment of rent that a landlord had served pursuant to Real Property Actions and Proceedings Law §711(2). She asserted that service of the rent demand "constituted harassment" and that she did not owe rent to the landlord.

The court explained that "[n]ormally, in order to ascertain the merits of a landlord's position that a tenant owes rent, the court looks at the most recent zero balance on a rent breakdown, adds the rent liability that accrued after that, and then subtracts all the payments." Here, the tenant participated in a federal Section 8 program. Thus, the tenant's share of the rent would "change as her income changed." Although the tenant "proved her most recent share of her rent, she did not provide proof of what her share was going back to the most recent zero balance in her rent breakdown."

The court found that the tenant owed a balance for her rent of $3,949.50 and therefore, the landlord's service of rent demand was neither "frivolous (n)or conduct that constitutes harassment." Although the tenant may have a valid laches defense, such defense did not "render service of a rent demand to be frivolous, particularly as even the successful interposition of a laches defense would not prevent Respondent from obtaining a non-possessory money judgment."

The tenant had also alleged that service of the rent demand on a minor child is harassment. The rent demand sought payment of rent from the tenant, but also sought payment of rent from the minor child.

N.Y.C. Admin. Code §27-2004(a)(48) defines "harassment" as, inter alia, as "any act by an owner of such significance as to substantially interfere with or disturb the comfort, repose, peace, or quiet of any tenant." The court stated that the tenant's "evident care for a minor child shows that she regards Respondent's demand of payment of rent from him with alarm." The court further stated that landlord's service of the rent demand "shows an act of Respondent that interferes with Petitioner's comfort and repose, particularly given that a demand for rent from anyone other than a tenant, much less a minor child is unnecessary, as RPAPL §711(2) only requires a demand from the 'tenant' not a nontenant."

However, the court then noted that as part of the Housing Stability and Tenant Protection Act of 2019 (HSTPA), the legislature authorized the courts to issue warrants "commanding a marshal to remove all persons 'named in the proceeding,'." The court stated that such amendment "could be interpreted to preclude an eviction of anyone who is not named in the proceeding, including minor children. Minor children have not previously been necessary parties to summary proceedings…." Thus, the court stated that there was an issue of whether the HSTPA "now requires landlords to name minor children for summary proceedings."

The court observed that the naming of parties in summary proceedings is done to "afford occupants over a property an opportunity to defend against eviction" and that in a summary proceeding, if a landlord named a minor child as an occupant, "the minor child would most likely appear by the occupant as a custodial parent…." In such case, the defense of the summary proceeding "would have the same effect on the outcome whether the parent defended in their own name only or also on behalf of the child."

The court further stated that the "only way that naming a minor child's parent would not suffice to afford the minor child an opportunity to defend against a summary proceeding is if the minor child's parent did not wish to defend against an eviction but the minor child wanted to live in the premises without the parent." The law "presumes that the residence of a child is the residence of the child's parents." However, "an emancipated minor, in theory, could be sixteen years old and live separate from their family." Thus, the court stated that in theory, "an adult occupant could conceivably move out of the premises, leaving an emancipated minor, such that service on only the adult occupant without service on the emancipated minor could fail to give the emancipated minor an opportunity to defend the summary proceeding."

The court held that in these circumstances, "if a landlord follows the dictates of the Legislature and errs on the side of naming more respondents than less respondents in the summary proceeding, the court cannot find that compliance with the expressed desires of the Legislature also subjects a landlord to harassment liability." The court further noted that "if there is an undesirable result, the problem is one to be addressed by the legislature."

Accordingly, the court dismissed the proceeding, without prejudice to any position the parties may wish to take in future litigation, including any summary nonpayment proceeding between the parties or otherwise concerning the subject premises.

Dunu v. 583 Riverside Dr. LP, Civil Court, New York Co., Case No. 1782/2019, decided Dec. 30, 2019, Stoller, J.

Environmental—Court Upheld Permits and Variance Issued By NYS Dep't of Environmental Conservation To Construct Bridge Over River That was Designated as "Scenic"; Allow Motorized Open-Space Recreational Use On the Bridge and To Construct Trail of a Certain Width—Whether Rivers System Act Permits Motorized Vehicles in Scenic River Corridors and Whether Law Required Written Findings Were Issues of First Impression—DEC Decisions Had Rational Basis—Neither Environmental Conservation Law nor Rivers System Act Required Written Findings

New York State (State) acquired acreage in the Adirondack Park and following such acquisition, the NYS Dep't of Environmental Conservation (DEC), in consultation with the Adirondack Park Agency developed a "unit management plan" for these lands (Complex Plan). The Complex Plan contemplated construction of a "new snowmobile trail" and construction of a bridge over part of the Cedar River (bridge), which had been designated as "scenic under the Wild, Scenic and Recreational Rivers System Act (RSA)."

Following review pursuant to the NYS Environmental Quality Review Act (SEQRA), the DEC approved the Complex Plan and began implementation. The DEC filed for a permit to build the bridge and allow motorized recreational uses on the bridge within the scenic river area. The DEC also sought to construct a trail to be built to a width of 9 to 12 feet. The DEC granted the application and issued the requested permits and variance.

The petitioners then commenced the subject Art. 78 proceeding to challenge those determinations. The court had issued a stay pending a decision by the Court of Appeals in a related case. The court was concerned that if "public snowmobile use was deemed impermissible on this portion of the trail, it would eliminate the only possible snowmobile access to the Cedar River from the south and create a dead end for snowmobilers traveling from the north, thereby rendering the proposed (bridge) superfluous."

After the Court of Appeals found that public snowmobile use was "permissible on the portion of the trail located immediately south of the proposed (bridge)," the subject court proceeded to consider the Art. 78 on the merits.

The petitioners alleged inter alia, that the permits and variance to permit construction of a snowmobile bridge over a scenic river violated the (RSA); the DEC had to make requisite findings before issuing the permits; the variance authorizes a prohibited use, i.e. motorized recreation in a protected scenic river corridor, in violation of the (RSA); the DEC failed to "weigh the benefit of granting the variance against the adverse impacts to protected river sources, in violation of the (RSA); the opening of the protected river corridor to public snowmobiling "constitutes an authorization and/or expansion of a prohibited use—namely motorized recreation—in a protected river corridor, in violation of the (RSA)"; the "DEC failed to classify its proposed action, prepare an environmental assessment form (EAF), identify and thoroughly analyze potential adverse environmental impacts, make a significant determination, and either an Environmental Impact Statement (EIS) or issue a negative declaration prior to issuing the permits and variance, in violation of SEQRA"; the "DEC failed to prepare any EIS before issuing the permits and variance in violation of SEQRA" and "the EIS prepared for the Complex Plan was 'generic' and the DEC failed to prepare a supplemental EIS for the proposed (bridge)," in violation of SEQRA.

The court's review was "limited to whether the determination lacks a rational basis and is, thus arbitrary and capricious" and "[i]f the agency's determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. The court may not substitute its judgment for that of the agency responsible for making the determination, in deference to the judgment of the agency, when supported by the record, is particularly appropriate when the matter under review involves a factual evaluation in the area of the agency's expertise…."

The petitioners argued that since "snowmobiling is not listed anywhere in the (RSA) as an allowable use in the scenic river corridor, it should be presumed incompatible with the purposes of the Act." The petitioners also noted that a final EIS prepared in 1986 stated that the regulations had been amended "to prohibit motorized open space recreational uses in scenic river areas. Therefore, bridges for this use have been prohibited…."

The respondents contended that motorized use was permissible and that the RSA "implicitly authorizes motor vehicles in scenic river areas by allowing roads, otherwise the Act would have prohibited motor vehicles as it does in wild river areas." The respondents also noted that there was also "no other access to the proposed (bridge) within two land miles in either direction…." The respondents further argued that the 1986 regulations had been replaced in 1996 and they argued that the earlier regulations were inapplicable.

The court stated that "whether the (RSA) permits the use of motorized vehicles in scenic river corridors is one of first impression, with the court having found little legislative history on the subject."

The court observed that the RSA expressly bars the use of motor vehicles in wild river corridors unless such use was preexisting and that there was no "such express prohibition in the … Act with respect to scenic river corridors…. Rather, the RSA expressly permits 'public access through new road construction in scenic river areas, provided there's no other such access within two land miles in either direction … as is the case here."

Accordingly, the court found that the "record contains a rational basis for DEC's determination that motorized use is permitted in scenic river corridors" and that public use of snowmobiling did not constitute an "impermissible alteration or expansion of a prohibited use in the area of the proposed (bridge)." There was little information in the record as to snowmobiling in the area of the proposed bridge.

A DEC official submitted an affidavit which stated that the DEC was not required to document its determination in the form of "written findings." The DEC contended that it must make certain determinations before issuing the variance, but it need not "issue a written findings statement before issuance." Whether written findings were required was an issue of "first impression."

The court explained that "judicial deference is particularly appropriate where the question is one of specific application of a broad statutory term or where the matter involves the agency's interpretation of a regulation that it promulgated and is responsible for administering." Additionally, "legal interpretation is the court's responsibility and, where the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency, and its interpretive regulations are therefore to be accorded much less weight…. Likewise, courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language…."

After reviewing the statutory language, the court was "unable to find any requirement of written findings in either ECL Article 70 or its implementing regulations." That fact, "combined with the fact that the (RSA) regulations were promulgated by DEC and DEC is responsible for administering them—(led) the court to conclude that written findings are not necessary." Citing the DEC's affidavit which described the criteria which it considered in granting the permits and variance, the court held that the record demonstrated that there was a "rational basis for DEC's determinations…."

The court further found that the final EIS "identified the relevant areas of environmental concern with respect to the (bridge), took a hard look at them and made a reasoned elaboration of the basis for DEC's determination." The final EIS included "an extensive discussion of four alternatives for the (bridge)—with one alternative being the absence of any bridge whatsoever—and the location presently proposed is ultimately deemed the 'preferred alternative because, among other reasons, it avoids or minimizes adverse environmental impacts to the greatest extent practicable….'"

The final EIS discussed the "potential environmental impacts and proposed mitigation measures, as does the SEQRA Statement of Findings." The DEC had acknowledged that the bridge could "diminish the experience of a paddler on the river, or a hiker on a nearby trail." However, the location of the bridge was "in a remote site in a Complex Area" and the river is designated a Scenic River "which carries with it a heightened level of protection." The "existing improvements within the river corridor, mainly old woods roads, are screened from view by those traveling on the river by an abundance of vegetation along both banks of the river…." In order to mitigate the impacts of the bridge, "the number of trees cut in the area, maintaining the existing vegetation screen, and utilizing a structure-finishing scheme to allow the bridge assembly to blend in with the immediate environ." The DEC sought "to utilize non-natural materials for the construction of the (bridge)" and such "non-natural materials will significantly reduce the physical profile of the structure…."

The ECL permitted an agency to waive the requirement for an EAF if a draft EIS is prepared and submitted. Thus, the DEC was not required to prepare an EAF. The court also held that the final EIS was not a "generic" EIS, but rather it "specifically addressed the proposed (bridge)—including its potential aesthetic impact." Accordingly, the court dismissed the petition in its entirety, vacated its preliminary injunction and also discharged and released the undertaking posted by the petitioners. The court declined to "find that the petitioners were not entitled to a preliminary injunction or that the injunction was erroneously granted…. [G]iven the potential impact of (the related Court of Appeals case) on the instant proceeding, a preliminary injunction was necessary pending the outcome of that case."

Adirondack Wild v. New York State Dept. of Envtl. Conserv, Supreme Court, Warren Co., Case No. 56-1-2019-0032, decided Dec. 13, 2019, Muller, J.

Scott E. Mollen is a partner at Herrick, Feinstein.